Intolerance dolled up as ‘equality’

The Supreme Court judgment in the B&B / gay couple controversy shows how illiberal equality laws can be.

Steve Preddy and Martyn Hall, a British gay couple, were discriminated against when the Bulls, a Christian couple, refused to honour their bed and breakfast booking. This week, the UK Supreme Court in London found this discrimination to be unlawful. It is a ruling that highlights how equality laws outlaw eccentric behaviours.

A gay couple nowadays would have to search far and wide to find hoteliers who would turn down their custom. Or, as in Preddy and Hall’s case, they would have to be exceedingly unlucky. Had they booked online, they would have seen the Bulls’ booking form that explained politely how ‘we have a few rules, but please note, that out of a deep regard for marriage we prefer to let double accommodation to heterosexual married couples only – thank you’.

The apologetic tone of the Bulls’ booking form may have betrayed their recognition that traditional Christian views on sex are not popular. Of the small and diminishing number of individuals who wouldn’t nowadays treat gays equally, many are motivated, like the Bulls, by a traditional Christian view. Legal discrimination against gays, practised by the state, is a thing of the past.

Yet, as the systematic unequal treatment of gays has ended, so another problem has grown. One pernicious social force has been replaced by another: the willingness of the state to outlaw minority or eccentric views and behaviours. State-backed oppression has yielded to state-backed intolerance.

The Bulls have been hauled before the courts and told they can no longer practise what they preach. To deny a couple the right to make a living in a manner consistent with their Christian values is draconian. The Bulls’ fate is similar to that of Lillian Ladele, an Islington marriage registrar, and Gary McFarlane, a Relate counsellor, who were both sacked after declining to provide their professional services to lesbians and gays. Equality laws did for them all.

The problem here is not, as it appears, merely a slap in the face to Christians. It is a slap in the face to the right of all individuals to act free of state control absent a compelling reason for intervention. As John Stuart Mill put it in On Liberty (1859): ‘The only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others.’

As if to satisfy Mill’s harm principle, the Supreme Court went in search of Preddy and Hall’s ‘harm’. What they found was that when the Bulls’ house rules were explained to Preddy and Hall, they found it ‘upsetting’ and ‘very hurtful’. Even in the touchy-feely twenty-first century, where self-esteem is seen as so important and so fragile, this is pretty lame.

The Supreme Court judge, Lady Hale, may have been aware that this ‘affront to their dignity’, as she put it, was not the sort of harm, in the Mill sense, that should justify the state’s coercive power. She bolstered her argument by linking Preddy and Hall’s hurt feelings to a bigger historical picture. ‘We should not underestimate’, she said, ‘the continuing legacy of those centuries of discrimination, persecution even, which is still going on in many parts of the world’. Colourful images come to mind of great struggles for equal rights fought by many a brave soul in the past and around the world today.

But the brave souls who Lady Hale alludes to did not complain about hurt feelings and they endured a little more hardship than having to walk up the road to get a double bed. Neither did they do battle with an eccentric couple acting out of conscience who signed off the offending message with ‘thank you’. The fight against ‘discrimination, persecution even’ has, in the course of human history, been a fight against something a little more threatening than one couple’s old-fashioned view of gay sex.

Equality laws have significantly expanded the state’s power. For every Christian couple hauled over the hot coals of discrimination law there are others who nowadays fear to say or act as they think fit. A few hurt feelings would be a small price to pay for the liberty that comes from being able to speak and act freely.

Jon Holbrook is a barrister in London. Follow him on Twitter: @JonHolb.

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